Speed Traps: Can I Avoid A DUI Conviction?

DUI Lawyer in Orange County         

There are many ways to get stopped by law enforcement and subjected to a DUI investigation; you may get stopped at a DUI checkpoint, perhaps you will get pulled over for an equipment violation, or the officer may stop you because he clocked you on radar exceeding the speed limit. DUI Attorneys in Orange County know that in most cases, before proof of a car’s speed that is clocked by a radar unit may be used against the driver, the posted speed limit must have been justified by an engineering and traffic survey conducted within the past 5 years before the date of the alleged speeding violation. (California Vehicle Code Section 40802(a)(2)) In some instances the speed survey needs to be conducted within the past seven or 10 years.

When a driver is pulled over because his speed was clocked with a radar unit and the driver is subsequently arrested for a DUI (drunk driving), the driver’s Orange County DUI Lawyer should argue that the traffic stop was unlawful and that it was a violation of the statutory exclusionary rule in the “speed trap” law. An Orange County DUI Attorney   can do this by filing  suppression motion under Penal Code Section 1538.5, which is a request to the DUI court to throw all the evidence out. However, there IS case law that the Orange County courts can cite which holds that the speed trap exclusionary rules of Vehicle Code Sections 40803 and  40804 only apply when the defendant is charged with speeding, and do not apply when the charge is DUI, even if the defendant’s rate of speed in the speed trap led to the initial traffic stop. People v. Hardacre (2004) 1116 Cal.App.4^th 1292. 

Although the Orange County courts fall under the jurisdiction of the 4^th District Court of Appeal in Santa Ana, the judges will still follow law from other appellate districts. Therefore, although your DUI Lawyer in Orange County should still bring the motion to suppress, there is a good chance that the motion will be denied.
If you are charged with a DUI, DUI with injury, or a DUI drugs call the Law Offices of EJ Stopyro today for a free and confidential telephonic consultation with a DUI Attorney in Orange County. You can discuss possible defense in your case and learn what your options are. Or visit our website at www.EJEsquire.com.

Orange County DUI lawyers 

Domestic Violence Arrest: Getting Released From Jail

Orange County Domestic Violence Lawyers 

If you are arrested for Domestic Violence in Orange County, you will either be: 1) released with citation; 2) released on your “own recognizance”; 3) released if you post bail; or 4) held in custody until your case is resolved. Naturally, your Domestic Violence Attorney in Orange County will do their best to earn the best possible release for you.

If you are arrested for a minor offense, such as a simple assault or battery, the arresting officer has the discretion to release you on your signed promise to appear after issuing you a citation with the date and time for you to appear in court at the arraignment. The citation will also contain the code section of the domestic violence offense that you are accused of committing. Have this citation handy when conferring with your Orange County Domestic Violence Lawyer because they will need the information listed on it.

An “own recognizance” (O.R.) release is available only from the court. At the arraignment, your Orange County Domestic Violence Attorney will have the opportunity to petition the court to grant you an O.R. release. Your defense lawyer must convince the judge that you will not flee the jurisdiction before your case has been litigated. Orange County domestic violence attorneys do this by showing the court that you have family or loved ones in the county and that you have other significant contacts here as well, such as a job and friends. If you own property in Orange County, this can also show that you are not likely to flee. Your defense lawyer must also convince the judge that you do not pose a danger to the victim or to society. If the judge believes that you do pose a danger or that you are a flight risk, you will not be granted an O.R. release.

 If your Domestic Violence Lawyer in Orange County is successful in getting you an O.R. release, the court will often impose conditions on this release. If you violate these conditions, you will likely be remanded to custody until your case is over. Typical conditions include obeying any protective order or restraining order and not having any contact whatsoever, either directly or indirectly, with the victim in the case. Other conditions may include seeking counseling for substance abuse or anger issues.

If your Orange County Domestic Violence Attorneys can’t get you an O.R. release, you still have the right to post bail to get released during your case. The amount of bail will vary depending on the seriousness of the crimes against you. There is an Orange County bail schedule that lists the recommended bail for most offenses. In domestic violence cases the typical bail ranges from $10,000.00 to $100,000.00. Whatever your bail is, you can post the amount with the court and be released until your case is final. The logic is that if the court has your money, you will not flee. However, if you do not have the amount of bail, you can hire a bail bondsman to post bail for you. A bondsman typically charges you ten percent of the bail amount to put up the rest of the bail for you. So, for example, if your bail is $10,000.00, you can give $1,000.00 to a bondsman who will then put up the entire $10,000.00 to get you out. If you do flee the jurisdiction, the bail bondsman loses the entire amount. Your Domestic Violence Attorneys in Orange County will know several bondsmen and can usually get you a small break on the price.

If you are in this country illegally, not even your Domestic Violence Lawyers in Orange County can get you out of jail. You will not be able to post bail because the jail will put an immigration hold on you. This means that you will likely be deported once your case is over and any sentence has been served. Also, if you were on probation when you were arrested, you will likely be denied bail and held in custody until your domestic violence case has been litigated.

If you have been arrested for domestic violence in Orange County, call the Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange County domestic violence lawyer. Or visit our website at www.EJEsquire.com.

 

Fighting A DUI Arrest: Prolonged Detention

Orange County DUI Attorney             

A DUI arrest in Orange County typically begins with a police or highway patrol officer pulling someone over for one reason or another. DUI Attorneys in Orange County know that these encounters can occur for any number of reasons. It may be a “saturation patrol” where officers are specifically looking to find and arrest a drunk driver, or it may just be a routine traffic stop for an equipment violation or traffic offense. In either case, once the officer detects any odor of an alcoholic beverage or the driver admits to drinking, the cop will conduct a DUI investigation with “voluntary” field sobriety tests and a “voluntary” breath test or preliminary alcohol screening(PAS) test as it is called. One way to fight a DUI is to show that the cop detained you longer than was necessary to address the initial reason for stopping you in the first place.

A police officer is not allowed to detain a driver for any time longer than necessary to complete the officer’s duty with respect to the initial violation for which he stopped you. People v. Gomez (2004) 117 Cal.App.4^th 351; Williams v. Superior Court (1985) 168 Cal.App.3d 349. Orange County DUI lawyers know that a police officer cannot impose a “general criminal investigation” on a driver who is detained for a traffic violation that is not reasonably necessary for the completion of the cop’s duty to issue a traffic citation unless the officer has independent reasonable suspicion that the driver has committed some other unrelated offense. The Fourth Amendment to the United States Constitution prohibits unjustifiably prolonged detention. This is applied on a case-by-case basis. In cases of a DUI it is generally held that administering field sobriety tests, questioning about drinking, and administering the preliminary alcohol screening test do not give rise to an unreasonably prolonged detention. People v. Bennett (183) 139 Cal.App.3d 602.

If the officer does delay the stop and is not sure whether to conduct a DUI investigation, then the driver’s Orange County DUI Lawyer will have grounds to bring a motion to suppress under Section 1538.5 of the California Penal Code.  So, for example, if a CHP officer stops a driver for exceeding the speed limit, and then isn’t sure whether to conduct a DUI investigation and calls for the assistance of another officer to help him or her make that decision, the delay in waiting for the backup officer may be sufficient to constitute a violation of the driver’s constitutional rights and the driver’s DUI Lawyer in Orange County could be successful in having the case thrown out or the charges reduced to a wet reckless.

If you have been arrested for a DUI in Orange County, it is in your best interest to consult with a DUI Lawyer in Orange County to learn what your options are and what defenses and strategies may be available in your case. Call the Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced DUI Attorney in Orange County. Or visit our website at www.EJEsquire.com.   

Orange County DUI Attorneys

Orange County DUI Attorney        

DUI Arrest: Home Confinement or House Arrest You Can Afford

If you get convicted of a DUI in Orange County, you may be required to serve some jail time, especially if it is a second offense DUI or if it was a DUI with injury. If the District Attorney offers you a set amount of jail time in order to resolve your case, your DUI Attorney in Orange County   may be able to negotiate a settlement where the jail time can be served as home confinement. (also called house arrest or supervised electronic confinement) If your Orange County DUI Lawyer does get home confinement for you, you will be required to wear a GPS bracelet and can only leave your house for work, school, the alcohol program, and other necessities of life. Home confinement through the probation department costs you money. Typically, you will be required to pay $375.00 for installation of the bracelet and between $12 and $20 per day, depending on your income. As the usual jail sentence for a second-offense DUI is about 60 days in the Orange County courts, this means that home confinement will cost you around $1,500.

About two weeks ago, however, the Orange County jail began a new home confinement program of its own. This program, called the Electronic Monitoring Program, provides home confinement to those who are approved by the court at NO COST. Thus, if you are sentenced to jail time for a DUI but your Orange County DUI Attorney   gets court approval to serve the jail time on home confinement, you have the option of doing it through the probation department at your own expense, or through O.C. jail at no cost. DUI Attorneys in Orange County know the only downside to the O.C.J. program is that you typically must spend the first night in jail at the Theo Lacy facility while they process you into their electronic monitoring program.

If your DUI Lawyer in Orange County cannot get court approval for home confinement, you still may be eligible for another alternative to jail. For example, because the O.C. jail is so crowded, it is typical for those reporting to jail on a DUI charge to be given Community Work Program. Under this program, you would report every morning for a day of physical labor, such as picking up trash at an Orange County park. Afterwards, you would go home. One 10-hour day of work is equal to one day of custody.

If you face conviction for DUI in Orange County and would like to consult with an experienced DUI Lawyer in Orange County about sentencing options, call the Law Offices of EJ Stopyro at (949) 559-5500 to today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.
Law Offices of EJ Stopyro
Orange County DUI Attorneys

Discovery: What It Means In A Criminal Case In Orange County

Criminal Defense Lawyer in Orange County

If you are facing charges for domestic violence, drug possession, drug sales or any other crime in the Orange County courts then you and your Orange County Criminal Defense Lawyer have the right to know what evidence the District Attorney has against you. The obligations of the District Attorney and your domestic violence attorney to put their cards on the table is referred to as “discovery”. In a domestic violence or other criminal case California Penal Code Section 1054 requires the DA to provide the following:

1.      The names and addresses of persons the prosecutor intends to call as witnesses at the domestic violence, theft, burglary, drug sales, drug possession trial or trial for any other criminal offense

2.      Statements of all defendants

3.      All relevant real evidence seized or obtained as part of the drug sales, drug possession, domestic violence or other criminal investigation

4.      The existence of a felony conviction for DUI, theft, domestic violence or other crime of any material witness

5.      Any exculpatory evidence in the assault & battery or other case

6.      Relevant written or recorded statements of witnesses in the drug case, domestic violence case, or other criminal case or reports of any statements made be witnesses the DA intends to call at trial.

Other information or discovery that your criminal defense attorneys in Orange County may want to obtain, depending on your case, is information about any complaints against the arresting officer for misconduct. This is called Pitchess discovery. Your criminal defense lawyer may also want to get records or information from a third party. Your defense attorney can use a subpoena duces tecum to do that. Your lawyer can also use the subpoena process to compel just about anyone to appear as a witness at the trial.

In cases where the police destroyed some evidence during an investigation for domestic violence or didn’t preserve evidence in a drug possession case, an Orange County domestic violence lawyer and a drug attorney were successful in filing a motion for “sanctions” at trial. Other discovery your defense lawyer may want is a “lineup” whereby the witness is required to identify the alleged defendant out of a group of fairly similar looking people.

If you are facing criminal charges and would like to consult with  experienced Orange County criminal defense attorneys, call the Law Offices of EJ Stopyro today at (949) 559-5500. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

DUI Lawyers in Orange County

DUI Arrest: Death Of The Presence Requirement

Orange County DUI Attorney

Ordinarily, a police or CHP officer is permitted to make a warrantless arrest for a misdemeanor offense, including an Orange County DUI, only when the DUI or other misdemeanor crime is committed in the officer’s presence. DUI Lawyers in Orange County know that “presence” means that the officer must be able to testify, on the basis of his or her senses, to acts that constitute every material element of the offense. People v. Welsch(1984) 151 Cal.App.3d 1038. If a driver was arrested for a DUI on the basis of the police or CHP officer’s personal observations, the only potential issue for a drunk driving suppression motion by the driver’s Orange County DUI Lawyer is whether the officer’s observations before the DUI arrest were sufficient to establish reasonable suspicion that a DUI occurred.

However, the legislature made a special law to get around this presence requirement in cases of driving under the influence of alcohol or DUI drugs. DUI Attorneys in Orange County are familiar with vehicle code Section 40300.5 which make several exceptions to the presence requirements in cases of a DUI arrest. This section allows an officer to make a warrantless arrest for DUI not committed in the officer’s presence when the officer has reasonable cause to believe that the driver has been driving under the influence of drugs or alcohol and the driver:

· is involved in a traffic accident;

· is observed in or about a vehicle that is obstructing a road;

· will not be apprehended unless immediately arrested;

· may cause injury or property damage unless immediately arrested; or

· may destroy or conceal evidence unless immediately arrested.

This last exception applies in almost every DUI investigation. It means that the officer can arrest a driver for a DUI not committed in his or her presence in virtually every instance in order to get a blood test or breath test.
Other judicially created exceptions to the presence requirement include allowing an officer who is assisting in a DUI investigation to make the arrest based on the personal observations of another officer. Dyer v. DMV (2008) 163 Cal.App.4^th161. Also, the cop can make the arrest when informed by a reliable third party of the third party’s observations of the driving. Packer v. Sillas (1976) 57 Cal.App.3d 206. The police can even kick in a person’s door and enter their home to get a blood or breath sample from someone whom they have reasonable suspicion to believe was driving under the influence of alcohol or drugs.
If you have been arrested for DUI in Orange County and would like to consult with an experienced and highly qualified Orange County DUI lawyer call the Law Offices of EJ Stopyro at (949) 559-5500 today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.
Law Offices of EJ Stopyro

 

Conspiracy: Agreeing To Commit A Crime Is A Crime

Orange County Criminal Defense Lawyer

California Penal Code Section 182 makes it a crime to enter into an agreement to commit a crime or any other act enumerated in that section. Such an agreement is called a “conspiracy” and is punishable as either a felony or a misdemeanor. Criminal defense attorneys in Orange County know that conspiracy is defined as an agreement between two or more persons with the specific intent to commit any crime. Typically, if the conspiracy is to commit a misdemeanor, such as assault & battery, theft, or domestic violence, then the conspiracy is usually charged as a misdemeanor.

Orange County criminal defense attorneys also know that a conspiracy requires more than just an agreement entered into between two or more persons with the specific intent to agree to commit the public offense and with the further specific intent to commit the offense. It MUST also be followed by an overt act. For example, if Dan and Bob agree to rob a gas station, they have not yet committed a conspiracy because they have not taken any action toward accomplishing their goal. But if Dan goes out the next day and buys ski masks for them both, the buying of these masks is an overt act toward completing the robbery and the conspiracy is complete. At this point, Dan and Bob could both be charged with conspiracy even though all they have done is agree to do it and buy some masks. Your Criminal defense lawyer will tell you that an “overt act” means any action or affirmative step taken by one or more of the co-conspirators that goes beyond mere planning or thee agreement to commit the crime, and which is done in furtherance of the object of the agreement. An overt act need not constitute a crime or even an attempt to commit the crime that is the goal of the agreement.

Penal Code Section 182 also punishes people who conspire to commit the following acts: 1) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; 2) Falsely to move or maintain any suit, action or proceeding; 3) To cheat and defraud any person of any property . . . by false pretense or by false promises with fraudulent intent not to perform the promises; 4) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws; and 5) To commit any crime against the person of the President or Vice President of the United States, the governor of any state, any United States justice or judge, or the secretary of any of the executive departments of the United States.

If you are facing criminal charges for conspiracy, DUI, domestic violence, drugs,theft, or anything else and would like to consult with an experienced criminal defense lawyer in Orange County, call the Law Offices of EJ Stopyro today at (949) 559-5500. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

DUI Lawyers in Orange County